Carlton and United Breweries Limited v Kane

[2004] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3734 of 2004

CARLTON AND UNITED BREWERIES LIMITED
	Appellant
v.
GRAEME KANE	Respondent

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JUDGES:	VINCENT and NETTLE, JJ.A. and HANSEN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2004
DATE OF JUDGMENT:	9 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 199

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ACCIDENT COMPENSATION – Weekly payments – Worker entitled to receive but not receiving weekly payments at time of expiry of “second entitlement period” – Termination of entitlement to weekly payments solely on ground of expiry of “second entitlement period” - Whether, in the circumstances, entitlement to weekly payments terminable without compliance with s. 114B and notice in accordance with s. 114(1) of the Accident Compensation Act 1985 – Accident Compensation Act 1985, ss. 52, 93CB, 93CD, 114 and 114B.

STATUTES – Construction – Purposive construction – Expressio unius est exclusio alterius.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R.P. Gorton QC With Mr. M.F. Fleming	Mills Oakley Lawyers Pty. Ltd.
For the Respondent	Mr. L.R. Boyes QC With Mr. N.B. Chamings	L.J. Brennan

VINCENT, J.A.:

1. I agree with the disposition of this matter as proposed by Nettle, J.A. for the reasons advanced by him in his judgment.

NETTLE, J.A.:

1. This is an appeal pursuant to s.52 of the Accident Compensation Act 1994 from a judgment of a judge of the County Court given on 30 January 2004. The question of law is whether s.114B, s.93CC, s.39 and s.123A of the Act applied in circumstances as to the termination of entitlement to weekly payments of compensation pursuant to the Act.

1. The relevant facts may be stated shortly:

i)The respondent sustained on or about 19 January 1998 an injury arising out of or in the course of his employment with Carlton & United Breweries Ltd.  He claimed compensation on 3 February 1998 and his claim was accepted and weekly payments of compensation were made from that date.

ii)On 15 March 2000 the agent of the Victorian WorkCover Authority (“VWA”) gave notice pursuant to s.114 of the Act purporting to terminate payments with effect from 14 April 2000 and in fact payments ceased on that day. As at that date, the respondent had been entitled to, and had been paid, for only 71 weeks (approximately) of compensation.

iii)On 18 February 2003 the respondent issued proceedings in the County Court to challenge the decision to terminate weekly payments.  The VWA rejected the application and the respondent instituted proceeding in the County Court in which he sought leave to bring proceedings for damages in accordance with s.135A.

iv)It was common ground that the termination notice be set aside.

v)The issue was the duration of the entitlement to weekly payments and

whether they were payable in respect of the period from 15 April 2000 to the date of judgment.

1. On 30 January 2004 it was adjudged that the notice of termination dated 15 March 2000 be set aside, weekly payments be reinstated from 15 April 2000 to date and continue.

1. The issues in this appeal are thus the same as those considered in Victorian WorkCover Authority v. Eva Balogh[1].

   [1][2004] VSCA 200.

1. For the reasons there expressed I would allow the appeal and set aside that part of the order the subject of appeal that directs the Authority to continue to make payments after the date of judgment, although noting that it remains bound to continue payments until expiration of notice given in accordance with s.114B.

HANSEN, A.J.A.:

1. I agree with Nettle, J.A.

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